Opinion
776 Dkt. No. O-8240/20 Case No. 2022–04845
10-12-2023
In the Matter of EDWARD C. Y., Petitioner–Respondent, v. JESSICA E. H., Respondent–Appellant.
Jessica M. Brown, Hartsdale, for appellant. Larry S. Bachner, New York, for respondent. Leslie S. Lowenstein, Woodmere, attorney for the child.
Jessica M. Brown, Hartsdale, for appellant.
Larry S. Bachner, New York, for respondent.
Leslie S. Lowenstein, Woodmere, attorney for the child.
Kapnick, J.P., Oing, Moulton, Higgitt, JJ.
Order of protection, Family Court, New York County (Jacob K. Maeroff, Referee), entered on or about October 24, 2022, which, upon a fact-finding determination that respondent committed the family offenses of reckless endangerment in the second degree and menacing in the second degree and, directed that respondent refrain from committing any criminal or family offenses against the parties’ child until July 27, 2024, unanimously affirmed, without costs.
Although the record does not reflect that respondent provided written consent to the order of reference (see CPLR 4317[a] ), respondent implicitly consented to the order of reference by actively participating in the proceeding without challenging the Referee's jurisdiction (see Matter of Vanessa R. v. Christopher A.E., 173 A.D.3d 412, 413–414, 102 N.Y.S.3d 571 [1st Dept. 2019], lv. denied 34 N.Y.3d 948, 110 N.Y.S.3d 400, 134 N.E.3d 141 [2019] ). A fair preponderance of the evidence supports the Referee's finding that respondent committed the offense of menacing in the second degree ( Family Ct Act § 832 ; Penal Law § 120.14[1] ). The child testified that respondent, while holding a fork about four or five inches from her face, made jabbing motions and threatened to stab her in the eye with it (see Matter of Irma A. v. David A., 139 A.D.3d 454, 455, 29 N.Y.S.3d 789 [1st Dept. 2016] ). The fork constituted a dangerous instrument under the circumstances, as it was readily capable of causing serious physical injury (see Matter of Marta M. v. Gopal M., 212 A.D.3d 524, 525, 181 N.Y.S.3d 562 [1st Dept. 2023] ). Because respondent's conduct created a substantial risk of serious physical injury to the child, the finding that respondent committed the offense of reckless endangerment in the second degree was also warranted (see Penal Law § 120.20 ). The Referee was entitled to credit the child's testimony, and we find no basis to disturb the Referee's credibility determinations (see Matter of Lisa S. v. William V., 95 A.D.3d 666, 943 N.Y.S.2d 886 [1st Dept. 2012] ).